President Lincoln- The Duty of a Statesman

by William Lee Miller

  With but half of them living and handy.

  This last line suggests one of the risks, and the horrors: the terrible mortality, not alone from disease, storm, and starvation: “In 1781, running short of water, the captain of the Zong ordered 132 Africans thrown overboard, because his insurance covered death from drowning but not from starvation.”

  When Congress enacted the law ostensibly ending American participation in the slave trade, on January 1, 1808, that trade did not immediately come to an end. All of those ships, outfitted in New York, sailing from Boston, Newport, and Salem, did not stop engaging in this lucrative trade. The American market was still there—expanding, in fact, with the purchase of Louisiana, with sixteen sugar plantations, in 1803, and with the expansion of the cotton kingdom in the gulf states after the invention of the cotton gin. And the American market was not the largest: more of the illicit slave trade by American carriers after 1808 supplied the slave markets of Brazil and Cuba. The prohibition of the international slave trade by American laws in 1808—and before and after, at the federal level and the state level—had this difference from Prohibition and the drug laws: the markets to which the illegal traders brought their goods (slavery in the American states, in Brazil, Cuba, and Jamaica) were themselves altogether legal.

  The story of the American struggle with the nefarious trade in slaves is a tale of the passage of rigorous laws, followed by nonexistent or ineffectual enforcement; of stirring condemnation, followed by quiet acceptance. The act of 1820 itself, making slave trading a capital crime, had to make a revealing distinction: between the “negro or mulatto” whom you could be put to death for “seizing” with intent to make him a slave, and the “negro or mulatto…held to service or labour by the laws of either of the states” who had already been “seized.”*44

  Among the moral anomalies accompanying American slavery were condemnations of the transatlantic slave trade by many who defended slavery. Henry Wise, a leading Virginia politician throughout the prewar period—an energetic defender of slavery on the House floor and governor of the state just before the war—would in one interlude in his career, as American minister to Brazil in the middle 1840s, become a most articulate opponent of the slave trade. He collaborated in that undertaking, to one’s total surprise, with the ambassador from the Great Britain that he had repeatedly attacked when he was a House member.

  A skeptic may point out that a Virginian (in contrast to a slaveholder from Alabama or Louisiana) could have a self-interested reason for opposing the international trade: Virginia had a surplus of slaves to sell southward, so the international trade represented the state’s competition. Nevertheless, one would not want to discount a certain amount of displaced moral revulsion even in the states whose social order still rested on the results of the trade. Perhaps if you were foreclosed from making moral judgment on the institution itself by your own involvement with it, you could compensate by being particularly fierce against the trade from which it had sprung.

  That trade—particularly the Middle Passage—had a blatant inhumanity that perhaps could be shielded in the settled world of the slave society. After the Mexican War, as the tensions over slavery sharpened and swaggering invocations of Southern “honor” grew, and the “right” to spread the institution to new territory was adamantly insisted upon—how then could the defenders of slavery condemn the slave trade? Part of the argument that slavery was a positive good was that it was good for the African, bringing him the benefits and comforts of “Christian” civilization. So could the traders buying slaves on the West African coast to transport them to a new land with all those benefits have been doing anything evil?

  There even came to be in the 1850s a body of opinion in the South proposing the reopening of the Atlantic slave trade. The Constitution of the Confederate States of America of February 1861 did have a clause forbidding the international slave trade, but firebrand opposition to that clause was strong. And the states’ rights interpretation of it was so complete as to make it altogether possible, according to W.E.B. DuBois, that under a successful Confederate States of America individual states would have reopened the African slave trade.

  Enforcement of the laws against the slave trade that Lincoln had summarized in his Peoria speech would have required appropriations from a Southern-dominated Congress and executive action by administrations that for the most part had strong political ties to the slave states. Conviction of those apprehended would require proof that the accused was an American or that the vessel was American-owned. The law required that the slave trader be arrested by American officers; capture by the much more diligent British did not count. Only seafarers could be charged, not the owners gathering in the profits back on dry land. And then if a trial were held, prosecution and conviction were doubtful.

  Between 1820 and 1854, when American slave trading was a crime punishable by hanging, few Americans had been caught; fewer had been convicted, and none had been executed. In 1854 one James Smith, master of the brig Julia Moulton, into which had been packed 664 Africans (“lying on their right sides, to be sure, so their heart action would be as easy as possible”), was apprehended. He tried to shuffle his citizenship to indicate he was not an American citizen and to claim that his vessel also was not of American ownership, but he was brought to trial, prosecuted, and found guilty by a jury after only an hour’s deliberation. He was the first American to be convicted as a slave-trading pirate and therefore was subject to execution by hanging. But Smith was unworried, not without reason. His skilled lawyer (later to defend Jefferson Davis) made no effort to present Smith as an innocent led astray but assiduously worked the technicalities and got a mistrial, and eventually a plea-bargain, that brought Smith’s punishment all the way down from hanging to two years in jail and a fine of $1,000. Smith served his term and applied to President Buchanan for a remission of the fine; in May 1857 President Buchanan granted, to the first man ever convicted of being a slave-trading pirate under American law, a full pardon. The New York Tribune commented acidly that presumably President Buchanan “thinks it a pity…now that the slave trade is so brisk, that Captain Smith should not have an opportunity to re-engage in his favorite employment.”

  Given this history, it is not surprising that Nathaniel Gordon and his seagoing family and his friends in the busy port of Portland, Maine, did not expect that he would ever face the hangman, or perhaps any severe punishment at all.

  He had had brushes with these laws before, to no serious damage. In 1838 his father, also named Nathaniel Gordon, master of the brig Dunlap of Portland, had been charged with importing a Negro slave. Ten years later, in 1848, in the streets of Rio a ship named the Juliet was rumored to be a slaver; it was boarded, searched, then reluctantly let go when the boarding party could find nothing decisive, and it was later rumored to have returned, now under Brazilian management, carrying a cargo of slaves. The registry of the Juliet, before this sleight of hand, had been Portland, Maine, and the captain, Nathaniel Gordon the son.

  Three years later Gordon turned up in Rio again, commanding a ship called the Camargo, also suspected of being a slaver. When Brazilian authorities arrested members of the crew, the American consul talked with two of them and learned the story of the earlier ship, the Juliet. Evading the African Squadron, the ship had gone all the way around to the east coast of Africa (a rare trip in the transatlantic slave trade), had taken on board five hundred Africans, had made the long voyage back to Brazil, had landed the Africans and the crew in another secluded spot, and then—this was the particularly striking point—was deliberately set on fire and burned. The profits from one successful voyage so far outweighed the value of the ship that it might be prudent (especially, one might surmise, in the case of a vessel already suspect like the Juliet) to destroy the evidence.

  None of these brushes with the law led to any conviction of either of the Nathaniel Gordons.

  SO WHEN IN AUGUST 1860 this Captain Nathaniel Gordon was arrested in the mouth of the Congo Rive
r, now on his ship the Erie, with a cargo of 897 Negroes, he certainly would not have feared—the 1820 law notwithstanding—for his life.

  But Gordon this time had the bad luck that the American nation had elected its first full-fledged antislavery administration. So the newly appointed district attorney who would prosecute him, a man named E. Delafield Smith, a rising young New York Republican, would have an ardor that had not marked previous prosecutions.

  When the first trial, in June 1861, ended in a hung jury—seven to convict, five to acquit—District Attorney Smith did not give up or plea-bargain but filed for a new trial, and he found witnesses who had not testified in the first trial. And this time he sequestered the jury, so they could not be bribed.

  Of course Gordon had shrewd lawyers, and of course they tried all the dodges and technicalities that had worked in other cases. Gordon’s lawyers claimed that the Erie (rather suddenly, like the Juliet) had ceased being an American vessel because it had been sold to foreigners. They made the particularly ingenious argument that Gordon himself might not be an American because his mother sometimes accompanied his father, the earlier Nathaniel, on his voyages, and this Nathaniel might have been born at sea. They argued that the crime had been committed so far into the mouth of the Congo as to have been in Portuguese water, therefore outside American jurisdiction.

  Finally, it was common for a slave ship captain when caught suddenly to claim irresponsibility: No, no, I am not in command of this ship; I am just a passenger. The commander is that Spaniard over there. And that was what Nathaniel Gordon’s lawyers did: he was no longer in charge of the Erie, they said, once some Spaniards came aboard.

  The judge dismissed the first three of these arguments, and witnesses contradicted the fourth.

  District Attorney Smith’s witnesses at the second trial, who had been sailors on the Erie, testified that they had had a confrontation with Gordon about the purpose of the voyage. As sometimes happened, the whole crew had not been fully informed at the outset. The Erie had been detained by a wary U.S. consul in Havana, but Gordon had given a sworn affidavit that his ship was chartered for a legal voyage to the coast of Africa. (Trade with the African coast in many other items of course was fully legitimate, offering further opportunities for subterfuge.) But when the Africans were taken aboard in the Congo and members of the crew challenged Gordon, he offered them each a dollar a head (so the witnesses now testified) for every African landed in Cuba.

  Republican district attorney Smith presented a particularly pungent episode, one of those lightning-flash glimpses of the horrors of the slave trade. While the crew from the capturing ship, the Mohican, was sailing the Erie to Monrovia, they brought the Africans on deck for water, then found they had been so tightly packed that they could not get them back in place. Gordon himself showed them “the manner of doing it, which was by spreading the limbs of the creatures apart and sitting them so close together that even a foot could not be put upon the deck.”

  The jury this time deliberated for only twenty minutes and returned with a verdict of guilty. The judge, William D. Shipman, having heard his first slave-trade case, gave a stern condemnation of the “wickedness” of the slave trade, sentenced Gordon to be hanged February 7, 1862, and told him that “you are soon to pass into the presence of the God of the black man as well as the white man.”

  Gordon and his lawyer, however, still did not think he would have any such confrontation just yet. They had a fallback plan: that power to pardon that the framers had bestowed upon the nation’s chief executive.

  SO GORDON’S COUNSEL, a former judge named Gilbert Dean, hurried to Washington and presented all his arguments to the president of the United States.

  What arguments for mitigation of Gordon’s punishment would be made, by Gilbert Dean and Rhoda White and others?

  First, that the law under which Gordon had been found guilty had never been enforced before, so it ought not to be enforced now. Nobody had been hanged; few had been punished at all. Gilbert Dean wrote to Lincoln: “For more than forty years the statute under which he has been convicted has been a dead letter.” The placard posted around New York had the same metaphor: “Captain Nathaniel Gordon is under sentence of execution for a crime that has been virtually a dead letter for forty years. Shall this young man be made a victim of fanaticism?”

  In one of his arguments Dean made affirmations of the value of human life that have a deeply ironic ring when you remember Gordon’s crime. The issue was a technical one, that the court had taken greater care with property cases than with this one. At the end of a paragraph deploring the allegedly greater technical care taken for titles to property than for Gordon’s possible execution, Dean wrote, without evident consciousness of the irony, that “human life is of less consequence than Bales of Cotton or Boxes of Dry Goods”—the human life being that of Nathaniel Gordon, not the 897 Africans packed in the hold of the Erie exactly like bales of cotton or boxes of dry goods.

  One of Dean’s more ingenious arguments was built on a judicial interpretation of the 1820 statute that went like this: “that a person having no interest in, or power over the negroes, so as to impress on them the character of slaves and only employed in their transportation is not guilty of the capital offense.” In other words, they were already slaves in Africa when I picked them up; somebody else sold them in Brazil, Cuba, or South Carolina; I’m just in the transportation business.

  Some of the arguments took account of the surrounding scene of civil war. Dean noted: “While the prison doors are opening to Convicted Pirates and acknowledged Traitors, the Gallows is being erected for Gordon, and why? Is the moral crime of which he is guilty greater than those of you are releasing?”

  Rhoda White expressed the view of Gordon’s supporters that the rules had abruptly changed when she said (with some truth), “Mr. Gordon was engaged in the slave trade at a time when many then in power upheld it, and engaged in it.” And then she added, with emphasis: “Not since the war began.” (To be sure, Gordon had been arrested in August 1860 and so had not been in a position to engage in the trade since the war began.)

  One last argument on behalf of Gordon is particularly revealing and has a kind of parallel in reverse to arguments made by the antislavery politician Abraham Lincoln out in Illinois in the 1850s. Gilbert Dean, discussing why the statute had been for forty years a dead letter, explained it thus: “because the moral sense of the community revolted at the penalty of death imposed on an act when done between Africa and Cuba, which the law sanctioned between Maryland and Carolina.” Dean’s most pungent sentence: “It was, nay it is, lawful to carry a child born in Virginia to Louisiana and there to sell him into perpetual slavery…is it an offense then deserving death to bring a barbarian from Africa to the same place?”

  SO THE GORDON CASE came to President Lincoln, one of his first major pardon cases.

  As a rising Illinois politician, Lincoln had made arguments that assumed that his hearers shared his own moral revulsion at the slave trade. In a remarkable series of paragraphs in his first great speech, in the fall of 1854, he drove home the point that his hearers, including those who owned slaves, could not really deny the humanity of the slave. One way that appears is in their attitude toward a slave trader. Lincoln presented as disdainful a picture of a human being—sneaking, crawling, snaky, untouchable, a native tyrant—as one is likely to find anywhere in the generally temperate Lincoln:

  [Y]ou have amongst you, a sneaking individual, of the class of native tyrants, known as the “SLAVE-DEALER.” He watches your necessities, and crawls up to buy your slave, at a speculating price. If you cannot help it, you sell to him; but if you can help it, you drive him from your door. You despise him utterly. You do not recognize him as a friend, or even as an honest man. Your children must not play with his; they may rollick freely with the little negroes, but not with the “slave-dealers” children.

  If you are obliged to deal with him, you try to get through the job without so much as touching
him. It is common with you to join hands with the men you meet; but with the slave dealer you avoid the ceremony—instinctively shrinking from the snaky contact. If he grows rich and retires from business, you still remember him, and still keep up the ban of non-intercourse upon him and his family. Now why is this? You do not so treat the man who deals in corn, cattle or tobacco.

  And as to the moral abomination of the transatlantic slave trade, he asked: Why did you join, in 1820, almost unanimously, in making the African slave trade punishable by hanging? You never thought of hanging men for catching and selling wild horses.

  He made the same comparison that Gilbert Dean would make, between the domestic and the international trade, but came to a contrasting moral conclusion. Dean said: Since it resembles the domestic slave trade, the transatlantic trade is not so bad as to be punishable by death. Lincoln the antislavery politician had said: Since the domestic trade resembles the abominable international trade, do not expand this abomination into new territory.

  One place Lincoln made this comparison was in his satire on Stephen Douglas’s use of the word “sacred” in the phrase “sacred right of self-government”—meaning the right to take slaves into the territories.

  If it is a sacred right for the people of Nebraska to take and hold slaves there [he said, with heavy sarcasm] it is equally their sacred right to buy them where they can buy them cheapest; and that will be on the coast of Africa; provided you will consent not to hang them for going there to buy them. You must remove this restriction too, from the sacred right of self-government. I am aware that you say that taking slaves from the states to Nebraska, does not make slaves of free men; but the African slave-trader can say just so much. He does not catch free negroes and bring them here. He finds them already slaves in the hands of their black captors, and he honestly buys them at the rate of about a red cotton handkerchief a head. This is very cheap, and it is a great abridgement of the sacred right of self-government to hang men for engaging in this profitable trade!